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Parties should have brought their ‘whole case’ in original litigation

By: Mark Tottenham BL

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High Court of England allows demurrer of (i.e. dismisses) an action for an account brought against the estate of a deceased business partner, on the grounds that: (a) the matter had already been determined by a decree of the Supreme Court of Newfoundland (SCN); (b) all matters relevant to the original litigation should have been dealt with in that litigation; (c) any alleged irregularities in the SCN proceedings should have been dealt with in those proceedings by way of an appeal to the Privy Council rather than in new proceedings, unless special circumstances arose; (d) the special circumstances alleged by the plaintiff were not sufficient to interfere with the original decree; and (e) the decree of the SCN was binding upon both parties, where it had been 'taken' by the plaintiffs as a computation of the accounts in question.

Wigram VC: Bill filed in Supreme Court of Newfoundland against brother and deceased partner of intestate - action for account of partnership transaction - action on behalf of father of remaining partner - sums found to be due to next of kin - claim by remaining parter in English court - allegation of errors and irregularities in the Newfoundland proceedings - demurrer - objection that all matters in question between parties might properly have been subject of objection in Newfoundland - letters of administration in Newfoundland - claim that plaintiff and late brother had been partners in business - branches in Bristol and Newfoundland - plaintiff claimed to be a creditor of late brother - claim that all matters had been concluded by final decree of Supreme Court of Newfoundland (SCN) - plaintiff only entitled to proceed against personal representative of deceased in England - whether proceedings leading to decree of SCN were irregular - whether special circumstances applied - whether amended bill was distinct from the original bill - alleged irregularity of service upon plaintiff - whether decree of SCN binding upon both parties - answer taken 'pro confesso' (as confessed - i.e. not rebutted).

Note: This is intended to be a fair and accurate report of a decision made public by a court of law. Any errors should be notified to the editor and will be dealt with accordingly.

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